Escolar Documentos
Profissional Documentos
Cultura Documentos
No. 05-4252
COUNSEL
ARGUED: Aaron Edmund Michel, Charlotte, North Carolina, for
Appellant. Amy Elizabeth Ray, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee. ON BRIEF: Gretchen C. F. Shappert, United
States Attorney, Keith Cave, Assistant United States Attorney, Charlotte, North Carolina, for Appellee.
OPINION
KING, Circuit Judge:
Jaime Ochoa Baldovinos appeals from his convictions and sentence
in the Western District of North Carolina on three drug offenses and
a firearms offense. Baldovinos makes two contentions on appeal, both
of which are constitutionally based: (1) that he is entitled to a new
trial because he was deprived of the effective assistance of counsel;
and (2) that his sentence must be vacated because he was involuntarily medicated with antipsychotic drugs for the purpose of rendering
him competent to be sentenced. As explained below, we reject the
ineffective assistance claim because it does not conclusively appear
from the record that Baldovinoss lawyer was constitutionally ineffective. In resolving the involuntary medication claim, we conclude that
our analysis is governed by the principles of Sell v. United States, 539
U.S. 166 (2003), we accept the prosecutions concession of plain
error, and in the exercise of our discretion we decline to correct the
error.
I.
On September 10, 2002, the grand jury charged Baldovinos with
a single count of conspiring to possess with intent to distribute
cocaine (21 U.S.C. 846), two counts of possessing with intent to
distribute cocaine (21 U.S.C. 841(a)(1)), and one count of using a
firearm during and in furtherance of a drug trafficking offense (18
U.S.C. 924(c)). Baldovinos proceeded to trial and, on March 28,
2003, a jury convicted him on all four offenses.
A.
On June 6, 2003, prior to his sentencing, Baldovinos filed a motion
in the district court seeking a transfer from the Mecklenburg County
Jail (the "Jail") to the Federal Correctional Institution at Butner, North
Carolina ("Butner") for a mental health evaluation. By Order of June
10, 2003, the court directed, pursuant to the provisions of 18 U.S.C.
4241(a) and 4244,1 that Baldovinos undergo an evaluation at But1
Section 4241(a) of Title 18, which applies "[a]t any time after the
commencement of a prosecution for an offense and prior to the sentenc-
ity" that they could restore Baldovinoss competency for his sentencing if the court extended his commitment period and authorized them
to involuntarily administer antipsychotic medication. J.A. 251.
Referencing the Supreme Courts decision in Sell v. United States,
539 U.S. 166 (2003), the physicians articulated several reasons in
support of their request for permission to treat Baldovinos with antipsychotic drugs. They first explained that treatment of psychotic
symptoms, such as catatonia, with antipsychotic medication was
"medically appropriate." J.A. 251. They also asserted that such treatment would be unlikely to significantly interfere with Baldovinoss
ability to assist his counsel at sentencing, given that Baldovinos neither complained of, nor did the staff observe, any adverse side effects
to his earlier emergent treatment. The physicians expressed hope that,
after a period of treating Baldovinos with "typical" antipsychotic
drugs, his condition would improve to the point that he would consensually take "atypical" drugs, which could only be administered orally
and are generally associated with less severe side effects than their
"typical" counterparts. Id. Finally, the physicians concluded that Baldovinos was "not amenable to other therapies at this time." Id. at 252.
The Butner physicians predicted that, after four months of treatment, Baldovinos would be restored to competency and could be
finally sentenced under the Sentencing Guidelines, rather than provisionally sentenced, pursuant to 18 U.S.C. 4244(d), to a suitable
facility for care and treatment for the maximum authorized term.
They warned that, if the court returned Baldovinos to the Jail, precautions would have to be taken to protect his safety, including possible
sedation and careful attention to ensure that he "attends to activities
of daily living (e.g., eating, drinking, toileting, showering), and does
not harm himself." J.A. 252-53.
By Order of August 12, 2003, the district court found, for the reasons spelled out in the First Report, that Baldovinos was legally
incompetent, and the court "[t]herefore" extended his commitment
period for continued treatment. J.A. 216. The court also authorized
the Butner physicians to involuntarily medicate Baldovinos and
directed officials at the Jail to furnish the Butner physicians with any
documentation concerning Baldovinos that they requested. At no time
did Baldovinos or his lawyer object to his being medicated.
From August 2003 to January 2004, the physicians had unsuccessfully treated Baldovinos with the antipsychotic drug Haloperidol.
Baldovinos was transferred from Butner to the Jail to await the hearing. The court was unable to proceed with the hearing "due to an
apparent decline in [Baldovinoss] mental health," and, on September
27, 2004, it recommitted him to Butner for further evaluation. J.A.
170.
On December 20, 2004, the Butner physicians issued their fifth
report to the court (the "Fifth Report"), again concluding that Baldovinos was competent to be sentenced. They reaffirmed their diagnosis of schizoaffective disorder, but also included a provisional
diagnosis of malingering, i.e., "the intentional production of false or
grossly exaggerated physical or psychological symptoms, motivated
by external incentives." J.A. 239. Specifically, the physicians
observed that, while Baldovinos "cried, trembled, and looked sad"
when with Butner staff, he "laughed and joked, and seemed full of
energy" when with his peers. Id. Furthermore, although Baldovinos
had ceased taking his medication when transferred to the Jail, the physicians found it suspicious that he had decompensated so quickly.
Despite their concerns that Baldovinos could be malingering, the physicians recommended that the courts hearing on competency and sentencing be conducted via videoconference so that he could remain at
Butner.
B.
The court accepted the Butner physicians recommendation and
conducted his hearing on February 14, 2005, by videoconference.
After determining that Baldovinos was competent, the court proceeded to sentencing. On the conspiracy offense, the court departed
from the applicable Guidelines range on the basis of Baldovinoss
mental illness, and it sentenced him to the statutory minimum term of
sixty months in custody. It also imposed sentences of sixty months on
each of the drug offenses, to run concurrently with the sixty months
imposed on the conspiracy offense. Finally, the court sentenced Baldovinos to the statutory minimum of sixty months on the firearms
offense, which was required by law to run consecutive to the conspiracy and drug sentences. Baldovinos thus received a total prison term
of 120 months, the minimum sentence he could have received on the
offenses for which he was convicted.
B.
Baldovinos next maintains that the district court erred in authorizing the physicians at Butner to medicate him with antipsychotic drugs
against his will, and that such error requires us to vacate his sentence.
Because Baldovinos makes this contention for the first time on
appeal, we review it for plain error only. See United States v. Ruhbayan, 406 F.3d 292, 301 (4th Cir. 2005). In order to prevail under
a plain error analysis, a defendant must show (1) an error, (2) that
such error was plain, (3) and that it affected his substantial rights. Id.
(citing United States v. Olano, 507 U.S. 725, 732 (1993)). Even if a
defendant satisfies this three-prong test, we should exercise our discretion to correct the error only if it seriously affects "the fairness,
integrity or public reputation of judicial proceedings." Olano, 507
U.S. at 736 (internal quotation marks omitted).
The Government asserts that the Supreme Courts decision in
Washington v. Harper, 494 U.S. 210 (1990), governs our analysis of
this issue, because the Governments purpose in medicating Baldovinos was at least in part to prevent him from harming himself and others. If the Government is wrong on this point, and if we
proceed instead under the principles of Sell v. United States, 539 U.S.
166 (2003), the Government concedes that the plain error test would
be satisfied. That is, it concedes that the district court erred in authorizing Baldovinoss involuntary medication for sentencing, that such
error is plain, and that the error affected his substantial rights. The
Government nevertheless maintains that we should decline to exercise
our discretion to correct the error. As explained below, the Sell principles apply here, we assume that plain error has occurred, and we
decline to correct the error.
1.
As an initial matter, we must assess whether this proceeding is governed by the principles of Harper or by those enunciated by the Court
in Sell. As explained below, the purpose of medicating Baldovinos
was to render him competent to be sentenced, and the Sell principles
thus control our analysis.
In its Harper decision, the Court was presented in 1990 with the
question of whether and when the Government could administer
10
This Court recently had occasion to elaborate on the Sell requirements. See United States v. Evans, 404 F.3d 227 (4th Cir. 2005). In
Evans, we emphasized that those principles require an exacting focus on
the personal characteristics of the individual defendant and the particular
drugs the Government seeks to administer. See id. at 240-42. We need
not further address Evans, however, because the Government concedes
that the district court erred under both Sell and Evans if those decisions
apply here.
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The Court in Sell emphasized that its principles were to apply only
when determining "whether involuntary administration of drugs is
necessary significantly to further a particular governmental interest,
namely the interest in rendering the defendant competent to stand
trial." Id. at 181. Although not explicit on this point, the Court indicated that the determination of which principles apply those of
Harper or those of Sell depends on the purpose for which the Government seeks to medicate the defendant. For example, in explaining
that involuntary medication is more appropriate on Harper grounds
than on Sell grounds, the Court advised district courts which are
"asked to approve forced administration of drugs for purposes of rendering a defendant competent" to "determine whether the Government
seeks, or has first sought, permission for forced administration of
drugs on . . . Harper-type grounds." Id. at 183 (emphasis added).
Thus, for Harper to govern the analysis, it is not enough to demonstrate that medicating a defendant will prevent him from harming
himself or others; the Government must show that the prevention of
such harm was one of the purposes for which it sought authorization
to medicate him.
With these principles in mind, it is clear that we should analyze
Baldovinoss claim under Sell rather than under Harper, as the record
demonstrates that the Governments overriding purpose in medicating
Baldovinos was to render him mentally competent to be sentenced.
The district courts Order of June 10, 2003, committed Baldovinos for
the express purpose of determining whether he was suffering "from
a mental disease or defect rendering him incompetent to proceed with
sentencing." J.A. 167-68. More importantly, in its August 12, 2003
Order authorizing Baldovinoss involuntary medication, the court
found Baldovinos to be incompetent and "[t]herefore" committed him
for further treatment. J.A. 216. Furthermore, in the Fourth Report
which concluded that Baldovinos was competent to be sentenced
the Butner physicians recommended that Baldovinos remain at Butner
until his sentencing was imminent, not to protect his safety, but to
reduce the risk that he would decompensate before his competency
and sentencing hearing could be conducted. The Fifth Reports final
recommendation, that Baldovinoss hearing be conducted by videoconference, was made for the same reason. Because the Government
sought to involuntarily medicate Baldovinos solely for the purpose of
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13
Court explained in Olano, however, even if a defendant has demonstrated that an unpreserved error satisfies the requirements of Rule
52(b) of the Federal Rules of Criminal Procedure, we should exercise
our discretion to correct the error only if it seriously affects "the fairness, integrity or public reputation of judicial proceedings." 507 U.S.
at 736 (internal quotation marks omitted). Because any plain error
that occurred in this case did not seriously affect the interests identified in Olano, we decline to exercise our discretion to correct the
error.
The Government urges us to decline to recognize any such error
because all those involved in medicating Baldovinos acted in good
faith (a point which is unchallenged, and which we accept), believing
that medicating him was in his own best interests. Although the good
faith of those involved in such a process may have relevance to such
an analysis, it should not be dispositive. If good faith were our sole
guidepost in assessing whether to correct a plain error, such an error
regardless of its seriousness or the severity of its impact would
seldom, if ever, be recognized. In any event, we have consistently
exercised our discretion to correct a plain error where no allegation
of bad faith has been made. See, e.g., United States v. Hughes, 401
F.3d 540, 555-56 (4th Cir. 2005) (exercising discretion to correct
plain Sixth Amendment error in sentencing only because defendant
received much longer sentence than authorized by law); United States
v. Floresca, 38 F.3d 706, 713-14 (4th Cir. 1994) (correcting plain
error on basis that defendant was convicted of unindicted offense).
Nonetheless, there are other reasons counseling us against recognition of any plain error that occurred here. First, Baldovinos has
already been medicated against his will, and nothing we can do now
will alter that fact. Importantly, a like circumstance played a role in
the Supreme Courts determination in Sell that an order authorizing
the involuntary administration of antipsychotic drugs is collaterally
suitable facility" for care and treatment for "the maximum term authorized by law for the offense for which the defendant was found guilty."
Thus, not only is there a "potential for future confinement" under
4244(d), the term of such confinement is likely to exceed the sentence
the defendant would otherwise receive from the sentencing court.
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appealable. See Sell, 539 U.S. at 177 (observing that "[a]n ordinary
appeal comes too late for a defendant to enforce" right to avoid
unwanted administration of antipsychotic medication). Second, this
"ordinary appeal" presents the unusual circumstance where the defendant is potentially worse off and in no case better off if he prevails. If we were to vacate Baldovinoss sentence, and if he is
presently incompetent to be sentenced, he could be provisionally sentenced to Butner or a similar institution pursuant to 18 U.S.C.
4244(d). Such a provisional sentence must be, under law, for "the
maximum term authorized . . . for the offense for which the defendant
was found guilty," which we have interpreted to mean the statutory
maximum. See United States v. Roberts, 915 F.2d 889, 892 (4th Cir.
1990). Baldovinoss conspiracy conviction alone (setting aside his
substantive drug offenses and firearms offense) carries a statutory
maximum of forty years, four times as long as the ten-year sentence
he has already received. See 21 U.S.C. 841(b)(1)(B)(ii)(II) (providing for maximum penalty of forty years where offense involved 500
grams or more of cocaine). Even if Baldovinos were competent to be
sentenced (or were rendered competent through the constitutional
administration of drugs), and therefore could be finally sentenced
under the advisory Guidelines regime, our decision to vacate his sentence would not improve his position. As previously noted, Baldovinos has already received the minimum sentence permissible
under law on his offenses. See supra Part I.B.
In these circumstances, we are unable to conclude that any error in
medicating Baldovinos against his will seriously affected the "fairness, integrity or public reputation of judicial proceedings." Olano,
507 U.S. at 736 (internal quotation marks omitted). We fail to see
how a remand in this case would enhance the fairness of these proceedings. Indeed, it is in part out of concern for Baldovinoss best
interests that we decline to recognize any plain error that occurred in
involuntarily medicating him. Were we presented with some explicit
indication that Baldovinos truly desires to serve a provisional sentence of up to at least forty years, rather than the ten-year, statutory
minimum sentence he has already received, our assessment would
take that position into account. Such an explicit indication, however,
has not been made to us.
We have no doubt that, in some situations, a judicial decision
upholding the Governments administration of drugs against a per-
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